The New Face of Self Defense

State laws across the country are moving towards a new threshold of self-defense. The fatal shooting of Trayvon Martin by George Zimmerman alarmed the nation of Florida’s Stand Your Ground law. Is the move forward to a better society or backwards to the days of the wild west? Recent events in Montana surrounding the killing of Dan Fredenberg is now a part of a developing narrative and answer to this question.

Brice Harper (24) is a free man. Flathead County, Montana Attorney Ed Corrigan has decided to not bring charges against Harper for the Sept. 22 killing of Dan Fredenberg (40). From every indication in the statements Harper gave to Corrigan, the shooting could have been avoided. As in the case of the Feb. 26, 2012 fatal shooting of Trayvon Martin by George Zimmerman, the opportunity for resolution without the loss of life is what makes the Harper/Fredenberg situation so egregious.

According to Corrigan, Mr. Fredenberg was concerned that Harper’s friendship with his estranged wife, Heather, was not simply a friendly relationship but rather a romantic marital affair. On the day of the shooting, Mrs. Fredenberg was at Harper’s house with her 18-month old twins when Mr. Fredenberg called looking for her. Mrs. Fredenberg did not answer, but the couple decided to take a drive in order to inspect some problems with her car. At some point they observed Mr. Fredenberg driving behind them erratically. Both cars pulled into a quiet Kalipsell subdivision where Harper lived. Mrs. Fredenberg asked Harper to go inside and to not respond if Mr. Fredenberg pursued him. Harper entered his home. However, rather than call the police given the a prior contentious exchange with Mr. Fredenberg, Harper retrieved a handgun from his bedroom and waited in a laundry area for Mr. Fredenberg to enter an unlocked garage. In his statement to the police, Harper said, “I told him I had a gun, but he just kept coming at me.” Harper further conveyed that Mr. Fredenberg was “charging at him, like he was on a mission.” Mr. Fredenberg’s actions proved fatal. When he reached a distance within a few feet of Harper, three gunshots rang out and the despondent husband was dead.

Attorney Corrigan released an Oct. 9 letter, providing investigation details not previously discussed in an earlier New York Times article.

While being escorted from the scene of the shooting by [Kalipsell Police Department] Officer Jason Parce, Brice stated: “I told him I had a gun, but he just kept coming at me.” Heather [Fredenberg’s wife, who witnessed the confrontation] stated to Officer Parce: “Brice shot him…he (Brice) told him he had a gun, but he just kept coming at him.” A neighbor also reported to Det. Scott Warnell that she overheard Brice repeatedly state “he was coming at me.”…

Heather observed Dan enter the garage and approach Brice as he was standing in the doorway to his residence, “walking up to him fast, cussing at him.” Heather could not hear what Dan was specifically saying, but she could hear yelling and knew it was “angry.”…

When asked by Det. Zeb Dobis if Dan ever got violent, Heather stated yes. [Corrigan observes that they were “were mutually abusive with each other.”] When asked what she thought would have happened had Dan been able to get a hold of Brice, Heather stated she thought “he would have tried to kill him.”…

Given the relationship between Heather and Brice which was known to Dan, the prior confrontation at Fatt Boys [a local restaurant], the manner in which Dan entered the garage, Dan’s obvious anger, Brice’s belief that Dan wanted to “kick his ass,” and Dan’s refusal to stop when ordered to do so, Brice’s belief that Dan intended to assault him was a reasonable one. Heather herself was of the opinion that Dan would have assaulted Brice had he been allowed the opportunity to do so.

The tragedy leaves the community of Kalipsell and state of Montana with a number of questions. Whether the relationship between Harper and Mrs.Fredenberg was a marital affair or an affectionate friendship, as claimed by Harper, might be salacious gossip for the town square. But more profound are questions surrounding the shooting itself. Did Harper leave the his garage door unlocked purposely in order to bait Mr. Fredenberg into a violent encounter? Was there an eminent threat and what that threat the result of explicit actions or paranoia from previous confrontations? Why did Harper not call the police in light of a history of discord? And how does the public arrive at an understanding of what actually transpired at Harper’s home when the only parties remaining were connected and the party hostile to that connection is deceased?

While we are unclear about myriad aspects of the case, what we can state with certainty is, Mr. Fredenberg stepping into the private domain of Harper placed him in the murky territory of Montana’s Castle Doctrine. The lawwas designed to promote the safety of its residents within the confines of their domicile.The Montana law (Montana Code Annotated – Section 45-3-103: USE OF FORCE IN DEFENSE OF OCCUPIED STRUCTURE) permitted Harper’s actions. The law reads:

45-3-103. Use of force in defense of occupied structure. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon an occupied structure. However, he is justified in the use of force likely to cause death or serious bodily harm only if: (1) the entry is made or attempted in violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon or offer of personal violence to him or another then in the occupied structure; or (2) he reasonably believes that such force is necessary to prevent the commission of a forcible felony in the occupied structure. History: En. 94-3-103 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-3-103; amd. Sec. 1644, Ch. 56, L. 2009; amd. Sec. 4, Ch. 332, L. 2009.

This killing and the determination not to try Harper come as the nation awaits the prosecution of George Zimmerman. A different state. A different set of circumstances, including the smoldering racial undercurrent. And a different legal framework, Stand Your Ground, will also be on-trial.

The broader questions in the Florida law are under review by a recently convened task force. It remains to be seen whether Montana will follow suit in a review of the Castle Doctrine. In states that enact these laws, tragic events similar to the killings of Martin and Fredenberg reveal deep-seated uncertainties about where we are as a nation particularly when laws intersect with race, class, gender, age, socioeconomic stratum, etc. What is the nature of threat, for instance, where the hostile party, for instance, is a woman at a time when more women than ever are possessing firearms under Conceal and Carry laws? Will laws equally protect American citizens or suffer from the historical disparities certain demographics confront in our nation’s courts? Must those who would use deadly force be able to demonstrate the exercise or attempted exercise of peaceful resolution before taking actions so drastic as to end a life of another human being?

Americans, all too weary of violence visited upon others and fearful of violence visited upon themselves, are forced to reach a balance between safety and justice. Without laws like Castle Doctrine, Stand Your Ground, and for that matter, Conceal and Carry, we forfeit a level of personal safety. In the recent Aurora, CO theater shooting, citizens are asking whether the violence would have been curtailed had the state enacted Conceal and Carry. It is reasonable that our statute evolve for the good of public safety. However, our over-indulgence in them can erode our sense of justice and gradually send us back to the gun-slinging days of times past. Times when perceived threat and deadly force intersect in what could otherwise be disagreements that result in a handshake and an apology.